In the view of the state Chamber, reiterated in a press release on Monday (December 13), “The people of Oklahoma spoke loud and clear last month that they want 15 members (nine of whom are NOT lawyers) serving on the Judicial Nominating Commission.”

As things now stand, two new, non-attorney members are unable to be appointed until the Speaker of the House of Representatives and the President Pro Tempore of the Senate are officially elected by their respective bodies in January. In that situation, as a result of certification of the election results, only 13 members are current on the nominating panel.

Additionally, however, three Commission members have resigned because they are married to an attorney and the new amendment prohibits them from serving. So now, in the Chamber’s analysis of the situation, there are only 10 members.

In what could be characterized as an “issue-framing” press release, sent to CapitolBeatOK and other news organizations, the Chamber continued: “It has been reported that one of the non-attorney members, Rami Masri, has been serving on the Grove School Board for three years while serving on the JNC. According to Oklahoma’s Constitutional provisions dealing with the JNC, ‘No Commissioner, while a member of the Commission, shall hold any other public office by election or appointment…’ ”

The Chamber release asserts: “Service on a school board is holding an elected public office and this Constitutional provision trumps any statutory exemption. So now there are only nine members legally serving on the Commission.

“Not so fast. If one does a simple Google search on some of the JNC members elected by the Oklahoma Bar Association, similar problems can be found. For example, JNC Commissioner Dan Little serves as the Chairman of the Board of Trustees of the Oklahoma School of Science and Math.

“So to recap, following the passage of State Question 752 the new total membership of the JNC should be 15, with a majority of eight needed to accept applications, conduct background checks, make cuts to the list of applicants and nominate candidates to the governor.

“Fifteen JNC members minus two vacancies that cannot be filled until January; three resignations; one member serving unconstitutionally on the Commission and the Grove School Board; and at least one other member questionably serving in other public offices contrary to Oklahoma’s Constitution. Total left: eight members of the Commission.”

Fred Morgan, president and CEO of the Chamber said in yesterday’s release: “The quorum for the Oklahoma Judicial Nominating Commission keeps slipping away. We don’t know if these Commission members under question should be removed from the Commission, but it is clear that several of the current members are probably violating the Oklahoma Constitution by continuing to serve.”

Outcome of the current controversy comes in the broader context of a changing of the guard in Oklahoma government.

Governor Brad Henry, a Democrat, made his fifth appointment to the state High Court last month, just days after the election. The governor has indicated he intends, if the existing commission completes its process, to name a replacement for the late Justice Marian Opala, as well.

Governor-elect Mary Fallin, a Republican, will name state Supreme Court nominees after January 10, when she takes the oath of office as the state’s first female governor.

Voters overwhelmingly approved S.Q. 752, an amendment to the state Constitution. The measure garnered 606,805 votes (62.83% of the total) while only 358,925 (37.17%) were opposed.

In the Chamber’s interpretation, the result indicated voters wanted more public citizen input into the selection of candidates for Oklahoma’s courts.

Regardless, JNC Chairman Allen Smallwood, who is also president of the Oklahoma Bar Association, has said he intends to move forward in the framework that existed in state law before the vote on the referendum.

“Proceeding with a nomination under such a cloud of uncertainty goes against the will of the Oklahoma people, and could be cause for legal action. Instead of pushing forward nominations to our Supreme Court and playing politics as usual, the governor, the Oklahoma Bar Association and the remaining members of the JNC should conduct a close examination of their membership,” said Morgan.

“Oklahoma voters said they wanted more citizen input in the selection of their judges, not more politics and business as usual.”

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